Karnataka High Court
Sangappa S/O Yallappa Koppad vs Parasharam S/O Angappa Pawar on 14 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:3489
CRL.A No. 100637 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100637 OF 2022 (A-)
BETWEEN:
SANGAPPA S/O YALLAPPA KOPPAD,
AGE: 40 YRS, OCCU: PRIVATE TRADE,
R/O BAGALKOT.
...APPELLANT
(BY SRI. ANAND ASHTEKAR, ADVOCATE)
ANNAPURNA
CHINNAPPA
DANDAGAL
Digitally signed by
ANNAPURNA
AND:
CHINNAPPA DANDAGAL
Date: 2024.02.20
10:49:15 +0530
PARASHARAM S/O NAGAPPA PAWAR,
AGE: 50 YRS, OCC: TRAILER WORK,
R/O CHOUDESHWARI WORKS,
OPPOSITE DENTAL COLLEGE,
OLD BAGALKOT, BAGALKOT-587103.
...RESPONDENT
THIS CRIMINAL APPEAL IS FILED U/SEC. 378 (4) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT DATED 03.09.2022 PASSED
BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BAGALKOT
AT BAGALKOT IN C.C.NO. 89/2021 AND CONVICT THE RESPONDENT
HEREIN FOR THE OFFENCE PUNISHABLE U/SEC. 138 OF N.I. ACT
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:3489
CRL.A No. 100637 of 2022
JUDGMENT
This appeal under Section 378 (4) of the Criminal
Procedure Code (for short, 'the Cr.P.C.') is filed by the
complainant with a prayer to set aside the judgment and
order of acquittal passed by the Court of I Additional Senior
Civil Judge and JMFC, At Bagalkot, in C.C.No.89/2021
dated 03.09.2022, wherein the respondent was acquitted
for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (for short, 'the NI Act').
2. Heard the learned counsel for the parties and
perused the papers.
3. The appellant/complainant herein had initiated
proceedings against the respondent for the offence
punishable under Section 138 of the N.I. Act before the
trial Court. In the said proceedings, respondent after
entering appearance in the matter, claimed to be tried. The
appellant in order to substantiate his case had examined
himself as PW.1 and got marked 5 documents as Exs.P1 to
P5. However, respondent/accused had not led any defence
evidence. The trial Court after hearing arguments
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addressed on both sides vide the impugned judgment and
order had acquitted the respondent for the offence
punishable under Section 138 of NI Act. Being aggrieved by
the same, complainant is before this Court.
4. Learned counsel for the appellant submits that
the trial Court was not justified in acquitting the
respondent. He submits that the presumption that arose
against the respondent has not been rebutted in the case
and therefore, he was liable to be convicted.
5. It is the case of the appellant that the
respondent had availed hand loan of Rs.5,00,000/- from
the complainant and towards repayment of the said
amount, he had issued cheque in question dated
20.05.2017 drawn on Karnataka Vikas Grameen Bank,
Bagalkot, for a sum of Rs.5,00,000/- in his favour. The
respondent has denied issuing the cheque in question to
the appellant and he also denied any transaction with him.
6. Appellant in his legal notice as well as in the
complaint filed before the trial Court has specifically
averred that the transaction with the respondent was
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supported by document. However, he had not produced
any such document before the trial Court. Respondent has
specifically denied execution of such document in favour of
the appellant. Though this Court granted sufficient
opportunity to the appellant to produce any such
document, the appellant has failed to produce such
document even before this Court.
7. The material on record would further go to
show that the number of the cheque was not mentioned
either in legal notice or in the complaint. Even in the
cheque return memo, the number of the cheque in
question was not mentioned. The trial Court after perusing
the cheque in question has observed that the cheque does
not bear the seal and signature of the bank to which it was
presented. Therefore, a serious doubt arises whether the
cheque in question was presented for realization by the
complainant and the same was dishonored by the drawee
bank. The respondent during the cross examination PW.1
has specifically suggested that he had not availed the loan
from the appellant and the cheque in question was not
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issued by him to the appellant towards discharge of any
legally recoverable debt.
8. Considering the fact that the appellant has
failed to produce any loan document which allegedly he had
in his possession and also the fact that the document
produced by the appellant before the trial Court does not
disclose that the cheque in question was presented by him
with his banker and the same was dishonoured by the
drawee bank, the defence raised by the respondent
appears to be probable. Therefore, the presumption under
Section 139 of the N.I.Act if any, stood rebutted. The
complainant on the other hand has failed to discharge his
initial burden and it is under these circumstances, the trial
Court has acquitted the respondent for the offence
punishable under Section 138 of the N.I.Act. The impugned
judgment and order passed by the trial Court which is
impugned in this appeal is well reasoned and sound and the
same does not call for interference by this Court.
9. Under these circumstances, I do not find any
good reason to interfere with the judgment and order of
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acquittal which is impugned in this appeal. Accordingly, the
appeal stands dismissed.
10. In view of the disposal of the appeal, pending
interlocutory applications if any, stands disposed off.
Sd/-
JUDGE
AC
CT:GSM
